DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because Fig. 5, Fig. 6, and Fig. 8 include multiple drawings in each figure. That is, Fig. 5 includes two drawings, Fig. 6 includes two drawings, and Fig. 8 includes two drawings. The drawings should either be individually numbered or should include lead lines or brackets if the views are connected. See MPEP 608.02 and 37 C.F.R. 1.84.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The current abstract recites “disclosed in the present invention” which is a phrase that can be implied.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 3 and 14-15 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 3 recites “the arc is under the chin or behind the neck”. This recites the device on the human body, and thus appears to encompass the human body within the scope of the claim. The claims should recite the human body only functionally. It is suggested that claim 3 be amended to recite that the arc “is configured to lie” or “is configured to be positioned” under the chin or behind the neck, in order to overcome this rejection.
Similarly, claim 14 recites the arc “around the head, either under the chin or at the back of the neck”. It is suggested that claim 14 be amended to recite that the arc “is configured to be positioned around the head, either under the chin or at the back of the neck”, in order to avoid issues under 35 U.S.C. 101.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-15 are rejected as failing to define the invention in the manner required by 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
The claim(s) are narrative in form and replete with indefinite language. The structure which goes to make up the device must be clearly and positively specified. The structure must be organized and correlated in such a manner as to present a complete operative device. The claim(s) must be in one sentence form only. Note the format of the claims in the patent(s) cited.
In claim 1, “the ear” (line 1) and “the bottom” (line 5) lack proper antecedent basis. The ear should be clarified, for example by reciting “an ear of a wearer”. In line 5, “the bottom” should read as “a bottom”. Also, “the cup” in line 5 is indefinite because it is unclear which of the two cups is being referred to. It is suggested that this read as “each cup”. In line 1, “washing of head” should read as, for example, “washing of a head of a wearer”. Also, the relative terms recited in claim 1 render the claim indefinite. Specifically, in claim 1, line 3, “high-strength” is indefinite because it is unclear what strength is considered to be high strength. The recitation of “small” holes (line 3) is indefinite because it is unclear what size or range is considered to be “small”.
Claim 1 recites an “arch”, while the dependent claims (see e.g. claim 2, line 1) recite “the arc”. In these cases, “the arc” lacks proper antecedent basis, and it is unclear whether an “arch” or an “arc” structure is being claimed. The claim terminology should be consistent and it is suggested that “arc” throughout the dependent claims be changed to “arch”.
In claim 2, the scope of “special” is indefinite and it is unclear what is regarded as “special”. That is, the structure of what is considered “special” is unclear.
In claim 3, “under the chin or behind the neck” recites the chin and the neck without antecedent basis. To the extent that these are the chin and neck of a wearer, this should be clarified and the claim should recite that the structure “is configured” to lie under the chin or the neck or the wearer, as set forth in the rejection under 101 above.
In claim 4, “the several small drainage holes” lacks proper antecedent basis. In line 2, “the accumulated water” lacks proper antecedent basis.
Claims 5 and 7-15 are particularly narrative in nature and do not clearly and positively set forth the structure which is being claimed. The structure of the claimed device should be clearly and positively specified. The claims should recite the structure in a clearly organized and correlated manner, to present a complete operative device, as explained above, with proper antecedent basis for all elements set forth. The claims are indefinite in reciting relative terms such as “small”, “slightly”, “very”, etc. and the term “special” (claim 8) is also of unclear scope.
With respect to independent claim 6, “the ear” and “the bottom” lack proper antecedent basis. The ear should be clarified, for example by reciting “an ear of a wearer”. In line 4, “the bottom” should read as “a bottom”. Also, “the cup” in line 5 is indefinite because it is unclear which of the two cups is being referred to. It is suggested that this read as “each cup”. The recitation of “small” holes (line 3) is indefinite because it is unclear what size or range is considered to be “small”.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 6 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wiegand et al (US 1,628,483).
Wiegand et al disclose a device for protection of the ear from water and heat, as in claim 6, comprising: two oval ear cups (1, 2; see pg. 1, lines 43-45 and 56-60; Fig. 2); an arch (formed by members 3,4; pg. 1, lines 45-52; Figs. 2-3), and small drainage holes (12) at the bottom of the cup (the holes on the bottom half of the plate 5 when oriented as shown in Figs. 1 and 2 form holes at the “bottom” of the cup as claimed). With respect to the recitation in claim 6 of the device being “for protection of the ear from water and heat”, this amounts to the intended use of the claimed device and does not further distinguish the claimed structure from that of Wiegand. The device of Wiegand has a structure and material which are capable of providing such protection.
Regarding claim 11, Wiegand discloses the arc (3,4) connects to the cups (1,2) forming a unified object (see Figs. 2-3) and allowing the cups to be more securely held on the head and transmits pressure to the cups enabling them to orient themselves correctly in space and settle with minimal gaps on the head (pg. 1, lines 49-52 and 84-90; pg. 1, line 109 through pg. 2, line 9; see Fig. 1).
Claims 6 and 8-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mirzaians (US 2020/0077768).
Regarding claim 6, Mirzaians discloses a device for protection of the ear from water and heat [0002, 0009], comprising: two oval ear cups (504; see Figs. 1, 5A, 9A, 9B; [0054]); an arch (formed by members 600/502; see Figs. 4A, 5A, 5E, 6, and 9A; [0011, 0054-0055, 0057, 0061-0062]), and small drainage holes (510) at the bottom of the cup (Fig. 9A; [0056]; the holes 510 are considered to be “on the bottom of the cup” since the wall of the cup through which the holes 510 extend forms a bottom surface of the cup lying against the ears, as seen within the interior of the cup 504 on the left in Fig. 9A, and also the holes would lie at a “bottom” depending upon the orientation of the apparatus, for example when lying with the ear cup down on a surface; therefore the holes are “at a bottom” as broadly recited in claim 6).
Regarding claim 8, Mirzaians discloses each cup is connected to the arc (600) through a special ball-joint (the ball joint formed by ball connectors 710 of the overmold 700 of arch 600; see Figs. 6-7C) to ensure that the cup sits securely on the ear (see Figs. 5A-5G), wherein the arch has a spring force that constantly presses on the cup [0055, 0057-0060], thereby keeping it in the adapted position; through the arch transfer the pressure from the arch towards each other, adding stability to the structure to ensure that the cups sit securely even when standing under a strong shower or in the stream of air from a hairdryer, or when turning or tilting the head, and to the arc snugly fit the head, following the contours of the head, to minimize gaps so as to avoid the possibility of water or hot air penetration (the arch of Mirzaians is capable of functioning as claimed; [0054-0055, 0057-0062]).
Regarding claim 9, the ball joint for the design has other connections (along plural ball-joint connections formed by the plural connectors 704/710; see Fig. 7A)
that allow the cup to rotate freely in space, which can also be used, wherein the ball joint provides the necessary level of freedom for the cup to orient in space and snugly adhere to the head, following its contours (the ball connectors of Mirzaians permit adjusting of the shape of the arch and position/orientation of the ear cups and thus function as in claim 9; [0054-0055, 0057-0062]).
Regarding claim 10, the structure of Mirzaians comprises that the arch can be widened and adjusted and presses on the cups [0012, 0057-0063], the cup is relatively mobile so that, when turning the head, the cup can change the contact angle, thereby preventing the formation of large gaps between the head and the cup through which water or air can enter [0012, 0057-0063]; the connection between the cup and the arch ensures that the cups are constantly under pressure, when turning the head and making slight shifts, the cups always try to turn to snugly adhere to the head, thereby compensating for the pressure from the arch and preventing the formation of large gaps between the head and the cup (the structure of Mirzaians would function as claimed; [0012, 0057-0063]), the cup has small drainage holes at the bottom of the cup (holes 510 extend forms a bottom surface of the cup lying against the ears, as seen within the interior of the cup 504 on the left in Fig. 9A) to ensure that if users raises their head and the water streams can reach the holes, due to their small size at the bottom of ear cup (the holes could function as claimed); the cup is made of a silicone material [0013, 0054] which is resistant to water and high temperatures, considered to be a good thermal insulator and can withstand temperatures up to 300 degrees Celsius (this is an inherent property of silicone and Mirzaians discloses it provides protection from heat [0007,0009, 0013], and there is a small air gap between ears and walls of ear cup to effectively protect the ear from high temperatures (the shape of the ear cups of Mirzaians would form such a gap; see Figs. 1-2, 5E-5F, 9A-9B).
Regarding claim 11, Mirzaians discloses the arc (600/502) connects to the cups (504) forming a unified object (see Figs. 3A-3D, 4A-4B, 5E-7A; [0054-0055, 0057, 0061]) and allowing the cups to be more securely held on the head and transmits pressure to the cups enabling them to orient themselves correctly in space and settle with minimal gaps on the head (the structure of Mirzaians would function as claimed; see [0055, 0059, 0063]).
Claims 6 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bui et al (US 2020/0396532).
Regarding claim 6, Bui et al disclose a device for protection of the ear comprising: two oval ear cups (10); an arch (20), and small drainage holes (316) at the bottom of the cup (see Figs. 1-3; paras. [0047, 0049, 0053].
With respect to the recitation in claim 6 of the device being “for protection of the ear from water and heat”, this amounts to the intended use of the claimed device and does not further distinguish the claimed structure from that of Bui. The device of Bui has the claimed structure and is capable of providing protection from water and heat.
Regarding claim 11, Bui discloses the arc (20) connects to the cups (10) forming a unified object (see Fig. 1) and allowing the cups to be more securely held on the head and transmits pressure to the cups enabling them to orient themselves correctly in space and settle with minimal gaps on the head [0049].
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Mirzaians (US 2020/0077768) in view of Falco (WO 97/48296).
Mirzaians discloses a device for protection of the ear from water during washing of head or taking a shower and from heat when using hot hair-styling tools or hairdryer [0002, 0009], comprising:
two oval-shaped cups (504; see Figs. 1, 5A, 9A, 9B; [0054]) made of high-strength silicone ([0013, 0054]; the silicone is considered to be “high-strength” since it is “heat resilient” as taught in [0013]);
an arch (600/502), which has the shape of an open circle (see Fig. 9A; [0055, 0057, 0059, 0061]); and
small drainage holes (510; Fig. 9A) at the bottom of the cup (the holes 510 are considered to be “on the bottom of the cup” since the wall of the cup through which the holes 510 extend forms a bottom surface of the cup lying against the ears, as seen within the interior of the cup 504 on the left in Fig. 9A, and also the holes would lie at a “bottom” depending upon the orientation of the apparatus, for example when lying with the ear cup down on a surface; therefore the holes are “at the bottom” as broadly recited in claim 1).
The ear protector of Mirzaians has all of the structure of claim 1 except Mirzaians does not disclose that the arch is made of nylon. Mirzaians teaches that the overmold of the arch comprises acrylic [0011-0012], rather than nylon. Falco discloses an ear protector having a resilient connecting band 130 which forms an arch as claimed (see Fig. 9; pg. 9, lines 3-7). Falco teaches that the arch (band 130) is made of nylon (pg. 8, lines 20-21). Falco teaches that this forms a band having suitable resilience such that the band may be splayed apart to fit the earmuff on the head, while providing adequate recovery forces to bias the earmuffs inwardly when worn, for a secure attachment on the head (pg. 8, lines 13-21). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arch of Mirzaians out of nylon in order to provide optimal resilience for a secure fit, as taught by Falco.
Regarding claim 2, the arch (600) is connected to the cups through special ball-joint connectors (the arch 600 is connected to the cups using the frame 700, which comprises ball connecters 710 (see Figs. 7A, 7B, and 7C), which connect to sockets thus forming “special ball-joint connectors” as broadly recited in claim 2; [0057-0062]).
Regarding claim 3, the arc is under the chin or behind the neck (the arch formed by the support structure 600/502 of Mirzaians could be worn under the chin or behind the neck since it could be so positioned as desired by a user; see structure shown in Fig. 9A which could be worn in such a manner).
Regarding claim 4, the several small drainage holes (510) are introduced at the bottom of the cup to ensure that the accumulated water drops off (the holes are on the bottom of the cup which overlies the ear as seen from the interior of the ear cup on the left in Fig. 9A, and the holes are capable of ensuring water exits the earcups as in claim 4; [0056]).
Regarding claim 5, the device of Mirzaians is capable of providing the protection set forth in claim 5 and is capable of functioning as claimed in claim 5 [0002, 0005-0009]).
Claims 1 and 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Bui et al (US 2020/0396532) in view of Falco (WO 97/48296).
Bui et al disclose a device for protection of the ear as in claim 1, comprising:
two oval-shaped cups (10) made of high-strength silicone ([0051]; silicone, as disclosed in para. 0051, is considered to be “high-strength” since it is a material which is heat resistant and strong);
an arch (20), which has the shape of an open circle (see Fig. 1; [0049]); and
small drainage holes (316) at the bottom of the cup (see Figs. 1-2).
With regard to the recitation in claim 1 of the device being “for protection of the ear from water during washing of head or taking a shower and from heat when using hot hair-styling tools or hairdryer”, this is directed to the intended use of the claimed device and does not further distinguish the claimed structure from that of Bui. The device of Bui has the claimed structure and is capable of providing protection from water and heat.
The ear protector of Bui has all of the structure of claim 1 except Bui does not disclose that the arch is made of nylon. Falco discloses an ear protector having a resilient connecting band 130 which forms an arch as claimed (see Fig. 9; pg. 9, lines 3-7). Falco teaches that the arch (band 130) is made of nylon (pg. 8, lines 20-21). Falco teaches that this forms a band having suitable resilience such that the band may be splayed apart to fit the earmuff on the head, while providing adequate recovery forces to bias the earmuffs inwardly when worn, for a secure attachment on the head (pg. 8, lines 13-21). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arch of Bui out of nylon in order to provide optimal resilience for a secure fit, as taught by Falco.
Regarding claim 3, the arc is under the chin or behind the neck (the arch 20 could be worn under the chin or behind the neck since it could be so positioned as desired by a user; see structure shown in Fig. 1).
Regarding claim 4, the several small drainage holes (316) are introduced at the bottom of the cup to ensure that the accumulated water drops off (the holes are on the bottom of the cup 10, as seen in Figs. 1-2, and are capable of ensuring water exits the earcups as in claim 4; [0009,0053]).
Regarding claim 5, the device of Bui is capable of providing the protection as set forth in claim 5 and is capable of functioning as claimed in claim 5 (see Bui Fig. 1; [0006, 0047-0049, 0051, 0053]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Bui et al (US 2020/0396532) in view of Falco (WO 97/48296) as applied to claim 1 above, and further in view of Gardner, Jr. et al (US 4,471,496).
Bui in view of Falco renders obvious the device of claim 1, however Bui discloses that the arch is connected to the cups using a socket or clip structure at the end of the arch and a post structure on the ear cups (Figs. 1 and 3 of Bui). Thus, Bui does not disclose a ball-joint connection as in claim 2. It is conventional, however, to attach a headband arch to ear cups using a ball-joint connection.
Gardner discloses a headband arch (1) which is connected to ear cups (10) using a ball-joint connection formed by stud 30 and grommet 20 (see Figs. 1-2). Garner discloses that the stud 30 comprises a portion 32 which may have “the form of a sphere or ball” (col. 4, lines 47-56). The grommet 20 comprises a socket (21) which forms a “joint” with the ball 32 (col. 5, lines 47-64). This forms a “special ball-joint connector” connecting the arch to each ear cup, as in claim 2. Gardner teaches that this forms an advantageous pivotal articulation for the earmuffs so that the structure can readily conform to the wearer’s head, while maintaining freedom of motion (col. 2, line 65 through col. 3, line 8; col. 5, lines 56-64). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to connect the arch to the cups in the earphones of Bui using a ball-joint connection in order to provide an improved connection which permits pivotal articulation, an improved fit to the head, and desired freedom of motion as taught by Garner.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Wiegand et al (US 1,628,483).
As to claim 7, Wiegand discloses the oval cups (1,2) cover the ear maximally and ensure reliable ear protection (see Fig. 1; pg. 1, lines 49-52; pg. 1, line 110 through pg. 2, line 12), and the cups cover a variety of ear sizes while keeping ear cups compact (pg. 1, line 105 through pg. 2, line 1), and once the device is assembled, the cup retains its freedom to rotate around its axis (the ear cups can be rotated by adjusting the position of the band 3,4 on the head; see Fig. 1).
Wiegand does not specify the dimensions of the cups, and thus does not disclose the cups comprise internal dimensions of the cup's oval of 75mm +/- 3mm for the longer part and 45mm +/- 3mm for the shorter part as in claim 7. Wiegand does disclose that the protectors can be “of any suitable width and length desired” (pg. 1, lines 107-108). It is within the routine skill in the art to determine the optimal dimensions depending on the size of the intended wearer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the cups of Wiegand with dimensions of 75mm +/- 3mm for the longer part and 45mm +/- 3mm for the shorter part, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable range involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 8-10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Bui et al (US 2020/0396532) in view Gardner, Jr. et al (US 4,471,496).
Bui discloses a device as in claim 6, however the arch is connected to the cups using a socket or clip structure at the end of the arch and a post structure on the ear cups (Figs. 1 and 3 of Bui). Thus, Bui does not disclose a ball-joint which connects the ear cups to the arch, as in claim 8. It is conventional, however, to attach a headband arch to ear cups using a ball-joint connection.
Gardner discloses a headband arch (1) which is connected to ear cups (10) using a ball-joint connection formed by stud 30 and grommet 20 (see Figs. 1-2). Garner discloses that the stud 30 comprises a portion 32 which may have “the form of a sphere or ball” (col. 4, lines 47-56). The grommet 20 comprises a socket (21) which forms a “joint” with the ball 32 (col. 5, lines 47-64). This forms a “special ball-joint” connecting the arch to each ear cup, as in claim 8. Gardner teaches that this forms an advantageous pivotal articulation for the earmuffs so that the structure can readily conform to the wearer’s head, while maintaining freedom of motion (col. 2, line 65 through col. 3, line 8; col. 5, lines 56-64). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to connect the arch to the cups in the earphones of Bui using a ball-joint connection in order to provide an improved connection which permits pivotal articulation, an improved fit to the head, and desired freedom of motion as taught by Garner.
By providing such a ball-joint connecting the arch to the ear cups in the device of Bui, the limitations of claim 8 are met, since each cup is connected to the arc through a special ball-joint to ensure that the cup sits securely on the ear, wherein the arch has a spring force that constantly presses on the cup, thereby keeping it in the adapted position (Bui as so modified in view of Garner). The arch would function as in claim 8, to transfer the pressure from the arch towards each other, adding stability to the structure to ensure that the cups sit securely even when standing under a strong shower or in the stream of air from a hairdryer, or when turning or tilting the head, and to the arc snugly fit the head, following the contours of the head, to minimize gaps so as to avoid the possibility of water or hot air penetration (see col. 2, line 65 through col. 3, line 8 and col. 5, lines 56-64 of Garner; the structure of Bui modified in view of Garner is capable of functioning as recited in claim 8). Regarding claim 9, the structure of Bui modified in view of Garner meets the claim limitations, since the ball joint has other connections (i.e. other positions) that allow the cup to rotate move, and function as set forth in claim 9.
As to claim 10, the structure of Bui modified in view of Garner meets the claim limitations, since the arch and cup would move and function in the claimed manner (see Garner, col. 2, line 65 through col. 3, line 8; col. 5, lines 56-64; col. 6, line 30 through col. 7, line 2). Also, the cup of Bui has small drainage holes (316) at the bottom of the cup, capable of functioning as claimed, and the cup is made of a silicone material [0051]. Silicone is resistant to water and high temperatures, considered to be a good thermal insulator and can withstand temperatures up to 300 degrees Celsius (this is an inherent property of silicone), as recited in claim 10. There is a small air gap between ears and walls of ear cup to effectively protect the ear from high temperatures (see Figs. 2-3 of Bui).
Regarding claim 12, the structure of Bui modified in view of Garner meets the claim limitations, in that the arch is attached to the cups through a ball- and-socket joint type of connection (see ball 32 and socket 21 taught by Garner; Figs. 1-2; col. 4, lines 43-45) and ends of the arc have a spherical shape (formed by ball 32), while the cups have a spherical recess (formed by socket 21), and is fixed by inserting the spherical end (32) into the recess (21), creating a ball and socket joint; see Figs. 1-2 of Garner.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Bui et al (US 2020/0396532) in view Gardner, Jr. et al (US 4,471,496) as applied to claim 12 above, and further in view of Falco (WO 97/48296).
Regarding claim 13, Bui does not disclose that the arch is made of nylon. Falco discloses an ear protector having a resilient connecting band 130 which forms an arch as claimed (see Fig. 9; pg. 9, lines 3-7). Falco teaches that the arch (band 130) is made of nylon (pg. 8, lines 20-21). Falco teaches that this forms a band having suitable resilience such that the band may be splayed apart to fit the earmuff on the head, while providing adequate recovery forces to bias the earmuffs inwardly when worn, for a secure attachment on the head (pg. 8, lines 13-21). Such a material is durable and does not break with repeated use or bending slightly beyond the required bend, as recited in claim 13.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arch of Bui out of nylon in order to provide optimal resilience for a secure fit, as taught by Falco.
Regarding claim 14, Bui and Falco disclose the arch is shaped like a thin, curved rod around the head, either under the chin or at the back of the neck, practically not hindering procedures in the head area (see Fig. 1 of Bui and Fig. 9 of Falco; the arch could be worn under the chin or at the back of the neck if desired).
Regarding claim 15, the nylon arch of Bui modified in view of Falco has a smooth surface and is made of a material that does not irritate the skin, nylon (as taught by Falco; pg. 8, lines 20-21).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The references cited on attached PTO-892 disclose ear protectors having structure and/or uses similar to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK J LYNCH whose telephone number is (571)272-1145. The examiner can normally be reached on M-Th, Alt F: 8:00 AM-5:00 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clint Ostrup can be reached on 571-272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PATRICK J. LYNCH/Primary Examiner, Art Unit 3732